Terms and Conditions of Supply
- In these Conditions the following definitions apply:
- “Applicable Laws” means all applicable laws, statutes, regulations, directives, safety standards and industry best practice and guidance applicable to the Goods, including product labelling requirements;
- "Bonded Location" means a location in which Goods liable to duty but in respect of which duty has not yet been paid may be stored and/or subject to any process without duty becoming payable;
- "Business Day" means a day other than Saturday, Sunday or public holiday when banks generally are open for non-automated business in Glasgow, Scotland;
- "Buyer" means the person(s) who purchases the Goods from the Seller;
- "Conditions" means the terms and conditions set out in this document;
- "Confidential Information" means any commercial, financial or technical information, information relating to products, plans, recipes, know-how or trade secrets which is obviously confidential, has been identified as such, which would be considered by a reasonable person as confidential or which is developed by a party in performing its obligations under, or otherwise pursuant to, the Contract;
- "Consumer" means a Buyer who purchases the Goods other than in the course of business;
- "Contract" means the agreement between the Seller and the Buyer for the sale and purchase of Goods, incorporating these Conditions, the Specification and the Order Confirmation;
- "Delivery Location" means the address for delivery of the Goods (which the Buyer must ensure is a Bonded Location unless the Goods are bottled products on which duty has been paid) as set out in the Order Confirmation;
- "Force Majeure" means an event or sequence of events beyond a party's reasonable control preventing or delaying it from performing its obligations under the Contract including (but not limited to) an act of God, fire, flood, epidemic, pandemic, lightning, earthquake or other natural disaster; war, riot or civil unrest, strike, lockout or boycott or other industrial action; interruption or failure of supplies of power, fuel, water, transport, equipment, telecommunications service or material required for performance of the Contract, except any party's failure to pay shall not be an event of Force Majeure in any event;
- "Goods" means the goods set out in the Order Confirmation and to be supplied by the Seller to the Buyer;
- "Order" means the Buyer's order for the Goods from the Seller, as communicated by the Buyer to the Seller whether via email, telephone, order form or otherwise;
- “Order Confirmation” means the document (which may be an email) provided to the Buyer by the Seller confirming the Seller’s acceptance of the Order;
- "Seller" means Still Drinking Ltd, a limited company registered in Scotland with company registration number SC682282 whose registered office is at 227 West George Street, Glasgow, Lanarkshire, Scotland, G2 2ND;
- "Specification" means the specification (if any) of the Goods provided by the Buyer and set out in the Order; and
"Value Added Tax” or “VAT" means value added tax under the Value Added Taxes Act 1994 or any other similar sale or fiscal tax applying to the sale or supply of the Goods.
Unless the context otherwise requires:
- each gender includes the others;
- the singular includes the plural and vice versa;
- references to persons include individuals, unincorporated bodies, government entities, companies and corporations;
- clause headings do not affect their interpretation;
- general words are not limited by example;
- any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
- references to any legislation will be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
Application of these terms and conditions
- These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing, or are referenced in the Order.
- No variation of: (i) these Conditions; (ii) an Order; (iii) a quotation from the Seller; or (iv) the Contract; will be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of the Seller.
- Each Order by the Buyer to the Seller will be deemed to be an offer to purchase Goods and shall be subject to these Conditions.
- The Seller reserves the right at all times to reject any Order, in whole or in part, at its sole discretion.
Any quotation by the Seller for the provision of Goods will be deemed to be:
- an invitation to treat (and shall not be an offer) by the Seller to supply Goods on and subject to these Conditions; and
- will be valid for 14 days only from the date of issue.
- The Order shall only be deemed to be accepted when the Seller issues the Order Confirmation, at which point the Contract is formed.
- Any samples, descriptive matter, advertising or promotional materials produced by the Seller are for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
- The price for the Goods will be as set out in the Order Confirmation.
Unless stated otherwise, the price:
- does not include the costs and charges of packaging and transport (including insurance) of the Goods which shall be borne by the Buyer unless otherwise agreed by the Seller. Where the Buyer is charged for packaging and transport such charge shall be noted on the Seller’s invoice; and
- does not include Value Added Tax which if applicable will be charged in addition at the then applicable rate.
- Unless the context otherwise requires:
3.3 If as the result of suppying Goods or providing any service in respect of Goods duty becomes payable in respect of such Goods the Buyer shall be responsible for such duty and shall reimburse on demand such duty to the Seller if the Seller requires to pay it.
- The Seller is entitled to invoice the Buyer for the Goods on issuing the Order Confirmation. The Seller is also entitled to withhold dispatch of the Goods until payment is received.
The Buyer will pay all invoices:
- in full without deduction or set-off other than as required by law, in cleared funds within three (3) days of the date of each invoice, and
- to the Seller’s nominated bank account as notified to the Buyer.
Time of payment is of the essence. Where sums due hereunder are not paid in full by the due date:
- the Seller may, without limiting its other rights, charge interest on such sums at five percent (5%) a year above the base rate of the Royal Bank of Scotland from time to time in force; and
- interest will accrue on a daily basis, and apply from the due date for payment until actual payment in full, whether before or after judgment.
- Any applicable VAT will be charged by the Seller and paid by the Buyer at the then applicable rate.
- Where the Seller has granted the Buyer a credit facility, amounts invoiced and accrued under that credit facility shall be payable within twenty one (21) days of their date of accrual unless specified otherwise. The Buyer acknowledges that any credit facility will have a defined limit and any invoiced amounts causing the amount owed to the Seller to fall over that limit shall be immediately due and payable unless specified otherwise by the Seller.
- The Seller may withhold all further deliveries of Goods to the Buyer if the Buyer exceeds its credit limit.
The Goods will only be:
- delivered by or for the Seller to the Delivery Location on the date or dates specified in the Order Confirmation; or
- made available for collection by the Buyer at the Seller’s, or its carrier's as the case may be, premises set out in the Order Confirmation. The Buyer will collect the Goods within the period specified in the Order Confirmation.
The Goods will be deemed delivered:
- if delivered by or for the Seller under clause 1.1, on completion of unloadingof the Goods at the Delivery Location;
- if collected by the Buyer under clause 1.2, on the Seller (or its carrier) making the Goods available for collection at the premises specified in the Order Confirmation.
- The Goods may be delivered by instalments. Any delay in delivery or defect in an instalment will not entitle the Buyer to cancel any other instalment.
- The Buyer shall not be entitled to reject the Goods if the Seller delivers up to and including five percent (5%) less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the invoice on receipt of notice from the Buyer that the wrong quantity of Goods was delivered.
- The Seller will use its reasonable endeavours to meet delivery dates but such dates are approximate only, and time of delivery is not of the essence.
The Seller will not be liable for any delay in or failure of delivery caused by:
- the person who attempts to collect or receive delivery of the Goods on behalf of the Buyer failing to prove to the Buyer’s (or the Buyer’s nominated third party carrier’s) reasonable satisfaction that such person is of legal drinking age (where the Goods contain alcohol);
- the Buyer's failure to: (i) make the Delivery Location available; (ii) prepare the Delivery Location as required; or (iii) provide the Seller with adequate instructions; for delivery;
- the Buyer's failure to collect the Goods from the premises set out in the Order Confirmation; or
- an event of Force Majeure.
If the Buyer fails to accept delivery of or collect the Goods as provided in clause 1.1 or 6.1.2 on the date or within the period set out in the Order Confirmation:
- delivery of the Goods will be deemed to have occurred at 0900 on the first Business Day following such date; and
- the Seller will store and insure the Goods pending the Buyer taking possession of the Goods, and the Buyer will pay all costs and expenses (including storage and insurance) incurred by the Seller in doing so.
- If five (5) Business Days after the day on which the Seller or its carrier first attempted delivery of the Goods, the Buyer has not taken possession of them, the Seller may resell or otherwise dispose of the Goods. The Seller will:
Title and risk
- Risk in the Goods will pass to the Buyer on completion of delivery.
- Title to the Goods will pass to the Buyer once the Seller has received payment in full for the Goods.
Until title to the Goods has passed to the Buyer, the Buyer will:
- hold the Goods in trust for the Seller;
- store the Goods separately from all other material in the Buyer's possession;
- take all good care of the Goods and keep them in good condition;
- insure the Goods: (i) with a reputable insurer; (ii) from the date of delivery; (iii) against all risks; (iv) for an amount at least equal to the price; and (v) noting the Seller's interest on the policy;
- ensure that the Goods are clearly identified as belonging to the Seller;
- not remove or alter any mark on or packaging of the Goods;
- inform the Seller as soon as possible if it becomes subject to any of the events set out in clause 14.1; and
- provide the Seller such information concerning the Goods as the Seller may request from time to time.
If, at any time before title to the Goods has passed to the Buyer, the Buyer informs the Seller, or the Seller reasonably believes, that the Buyer has or is likely to become subject to any of the events specified in clause 14.1, the Seller may:
- require the Buyer at the Buyer's expense to re-deliver the Goods to the Seller; and
- if the Buyer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
- This clause shall only apply to Consumers.
- If the Buyer has purchased the Goods online, or if the Buyer has otherwise not seen the Goods prior to purchase, then (other than where the Goods are bespoke or made to order which includes Goods which are bottled to meet the Buyer's requirements) the Buyer shall have the right to cancel the Contract without giving any reason within 14 days from the day on which the Buyer acquires, or a third party other than the Seller and indicated by the Buyer acquires physical possession of the Goods.
- To exercise the right to cancel, the Buyer must inform the Seller of the decision to cancel the Contract by a clear statement (such as a letter sent by post or email) using the contact details set out in the Order Confirmation.
- If the Buyer cancels the Contract, the Seller will reimburse all payments received from the Buyer, including the costs of delivery (except for the supplementary costs arising if the Buyer chose a type of delivery other than the least expensive type of standard delivery offered by the Seller.
- The Seller is entitled to make a deduction from the reimbursement for loss in value of any Goods supplied, if the loss is the result of unnecessary handling by the Buyer.
- The Seller is entitled to withhold reimbursement until it has received the Goods back or the Buyer has supplied evidence of having sent back the Goods.
If the Buyer has received Goods:
- the Buyer will at his risk send back the Goods, without undue delay and in any event not later than 14 days from the day on which the Buyer communicates its cancellation of the Contract to the Seller. The deadline is met if the Seller sends back the Goods before a period of 14 days has expired;
- the Buyer will have to bear the direct cost of returning the Goods; and
- the Buyer is only liable for any diminished value of the Goods resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the Goods.
Where the Goods are to be bottled and the Seller is, as part of the Contract, to carry out or arrange the bottling on behalf of the Buyer:
- the Buyer shall be entirely responsible for the accuracy of any Specification relating to the form of bottling and, in particular, labelling of the bottles, other than to the extent the label requires to comply with any Applicable Laws relating to the information to be contained on any label regarding the product, such legal requirements being the responsibility of the Seller;
- where any trade mark, description or image is to be included on the label the Buyer warrants that it has the right to grant to the Seller a licence to reproduce such work on the label and hereby grants a licence of all relevant rights to the Seller to do so;
- the Seller shall not be liable for failure of the Goods to comply with any Applicable Law as a result of the Seller making the Goods (or part or parts of the Goods) to the Specification provided by the Buyer; and
- the Buyer acknowledges that it shall be responsible for any duty which is payable in respect of the bottling of the product.
- The Seller reserves the right to refuse to label bottles in a way which it considers is contrary to any Applicable Law or otherwise may infringe the rights of any third party and the Buyer shall indemnify the Seller from and against any claim by any third party that a label meeting the Specification provided by the Buyer infringes such third party's rights.
- Where the Goods are to be bottled and the Seller is, as part of the Contract, to carry out or arrange the bottling on behalf of the Buyer:
The Seller warrants that on delivery the Goods will:
- conform in all material respects to the Specification;
- be free from material defects; and
- be of satisfactory quality,
The warranties set out in clause 10.1 above will be subject to the following qualifications:
- where the Goods are described by reference to quantity, age and origin (including distillery or region), any warranty about such matters is given only so far as the Seller believes and is not guaranteed;
- with regard to the volume of whisky contained within any cask sold to the Buyer then, unless a regauging is carried out at the time of sale, any reference to volume is as at the last regauge of such cask and the Buyer acknowledges that the volume within the Cask may decrease due to natural processes; and
- no warranty is given as to the qualities of any whisky.
The Seller will not be liable for any failure of the Goods to comply with clause 10.1:
- if the defect arises because the Buyer, any of its employees, consultants or other representatives, or any subsequent purchaser of the Goods, fails to follow the Seller’s oral or written instructions as to the storage or maintenance of the Goods or (if there are none) good trade practice regarding the same, or fails to adhere to any term of the Contract;
- if the Buyer, any of its employees, consultants or other representatives, or any subsequent purchaser, alters or tampers with the Goods without the written consent of the Seller;
- where the Buyer, any of its employees, consultants or other representatives, or any subsequent purchaser uses or consumes any of the Goods after notifying the Seller that they do not comply with clause 10.1.
- Except as set out in this clause 10 the Seller gives no warranty in relation to the In particular, the conditions implied by ss 13–15 of the Sale of Goods Act 1979 and to the extent permitted by law, by the Consumer Rights Act 2015, are expressly excluded.
- The Seller warrants that on delivery the Goods will:
Obligations of the Buyer
The Buyer will:
- ensure that the Specification which it provides is complete and accurate and contains all information the Seller may require;
- ensure that any Specification provided by the Buyer will comply with all Applicable Laws and that Goods made to such Specification will also therefore comply with all Applicable Laws; and
- co-operate fully with the Seller in relation to delivery or collection of the Goods.
The Buyer warrants:
- where the Goods contain alcohol, that the Buyer is permitted to buy them in the United Kingdom or the place in which the Goods will be delivered; and
- if the Goods are being supplied on the basis that no duty has been paid, that the Buyer is entitled to hold the Goods without any duty being payable or has arranged for the Goods to be held on its behalf in a way that ensures no duty will be payable and that the Delivery Location is a Bonded Location.
- Where the Goods supplied by the Seller to the Buyer are described by reference to the non-primary name of the distillery of its origin, the Buyer hereby undertakes not to describe or refer to the Goods by such distillery's primary name without the express written consent of the Seller and to procure that any purchaser of the Goods also gives such undertaking. The Buyer acknowledges that the relevant distillery and/or its owners may rely upon such undertaking and enforce it in terms under the Contract (Third Party Rights) (Scotland) Act 2017.
- The Buyer will:
The Seller does not exclude its liability:
- for death or personal injury caused by its negligence; or
- for breach of the terms implied by s 12 of the Sale of Goods Act 1979; or
- for defective products under the Consumer Protection Act 1987; or
- for fraud or fraudulent misrepresentation; or
- for any other liability which cannot be lawfully excluded or limited.
Subject to clause 12.1:
- the Seller shall under no circumstances whatsoever be liable to the Buyer whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit, business revenue or any indirect, secondary or consequential loss, damage, expense or liability arising under or in connection with the Contract; and
- the Seller’s total liability to the Buyer in respect of all losses arising under or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid under the Contract.
A party will not be liable if delayed in or prevented from performing its obligations due to an event of Force Majeure, provided that it:
- promptly notifies the other of the event of Force Majeure and its expected duration; and
- uses reasonable endeavours to minimise the effects of that event.
If, due to an event of Force Majeure, a party:
- is or will be unable to perform a material obligation; or
- is delayed in or prevented from performing its obligations for a continuous period exceeding thirty (30) days;
- A party will not be liable if delayed in or prevented from performing its obligations due to an event of Force Majeure, provided that it:
- The Seller does not exclude its liability:
- The Goods will only be:
then the other party may terminate the Contract on immediate written notice.
The Contract may be terminated (or delivery of the Goods suspended) immediately upon written notice by the Seller if:
- the Buyer commits a material breach of the Contract which is irremediable or fails to remedy a breach which is capable of remedy within ten (10) Business Days of receiving a notice specifying the breach;
- the Buyer is unable to pay its debts as they fall due or is otherwise bankrupt or insolvent; or has a receiver (or its overseas equivalent) appointed to manage its business or assets; or is the subject of any steps to wind it up for any reason or has a substantial proportion of its assets seized or expropriated; or the Buyer takes or suffers any action similar to any of the foregoing in any jurisdiction;
- the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business; or
- the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
- In addition to its rights under clause 14.1 the Seller may terminate the Contract at any time immediately on written notice to the Buyer if the Buyer has failed to pay any amount due under the Contract within three (3) Business Days of the due date.
On termination of the Contract for any reason:
- the Buyer will within five (5) Business Days pay all invoices of the Seller then outstanding and not disputed in good faith;
- the Seller will, within ten (10) Business Days, invoice the Buyer for all Goods delivered or provided but not yet invoiced and the Buyer will pay such invoice within a further five (5) Business Days;
- the accrued rights and liabilities of the parties will not be affected; and
- any clauses which expressly or by implication are to survive termination will do so.
- The Contract may be terminated (or delivery of the Goods suspended) immediately upon written notice by the Seller if:
14.4 If the Buyer ceases to place further orders and the Seller has purchased labels to meet the Buyer’s expected demand, the Seller shall be entitled to recover the cost of such additional labels from the Buyer.
Unless stated otherwise, time is not of the essence of any date or period specified in these Conditions, the Order Confirmation or otherwise in the Contract.
- No set-off
All payments by the Buyer will be made without set-off or counterclaim, free and clear of and without deduction for any tax, levy, duty, charge, or withholdings of any kind now or in the future, imposed in any jurisdiction unless it is compelled by law to deduct or withhold any such amounts, in which case it will pay to the Seller such additional amount as will ensure that the Seller is paid the full amount it would have received but for such deduction or withholding.
The parties are independent businesses and not principal and agent, partners, or employer and employee.
If any part of the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be, to the extent required, deleted from the Contract and the remaining provisions of the Contract will otherwise remain in full force. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
Notices under the Contract will be in writing and sent to the persons and addresses set out in the Order Confirmation. They may be given, and will be deemed received:
- by recorded first-class post: two Business Days after posting;
- by international courier: five Business Days after posting;
- by email: on the first Business Day after sending provided that no notification of delivery failure is received by the sender.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
- Rights of Third Parties
Subject to Clause 11.3, a person who is not a party to the Contract shall not have any rights under or in connection with it.
In the event of conflict, the terms of these Conditions prevail over those of the Order Confirmation.
- Entire Agreement
The Contract constitutes the entire agreement between the parties in relation to its subject matter. No other terms apply. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract.
The Contract will bind and benefit each party's successors and personal representatives.
The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Seller.
Governing Law & Jurisdiction
- The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of Scotland.
- The parties irrevocably agree that the courts of Scotland shall have non-exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, the Contract, its subject matter or formation (including non-contractual disputes or claims).